Kahano v Solomon Islands Electoral Commission [2011] SBHC 9; HCSI-CC 338 of 2010 (18 March 2011)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Civil Jurisdiction – CC No. 338 of 2010

BETWEEN:

HUGO KAHANO
Petitioner

AND
SOLOMON ISLANDS ELECTORAL COMMISSION
First Respondent

AND

RETURNING OFFICER FOR MALAITA OUTER ISLANDS
Second Respondent

AND

MARTIN KEALOE
Third Respondent

DATE OF HEARING : 1 March 2011
DATE OF JUDGMENT : 18 March 2011

Mr. W. Togamae for Petitioner
Attorney General for First and Second Respondent

DECISION

1. This is an election petition. During the process of filing sworn statements, preliminary questions the interpretation regarding section 65 of the National Parliament (Electoral Provisions) Act (Cap. 87) ("the Act") were raised for determination by the court. These questions concern:
   
   • (i) The application and interpretation of certain phrases of section 65 (1) of the Act.
     
   • (ii) Whether Extraordinary Gazette No. 87 published on 5 August 2010 was in accordance with section 65 (2) of the Act.
     
2. The brief facts are that the Governor-General appointed 4 August 2010 to hold general election in the country to elect new members of the National Parliament. For purposes of this matter, the First Respondent invoked its power under section 65 (1) to defer voting in ward 31 (Luaniua) and ward 32 (Pelau) of the Malaita Outer Islands Constituency to 9 August 2010. The notice of the deferment was published on 5 August 2010 in Extra Ordinary Gazette No. 87. The reason for the deferment was due to unforeseen problems relating to scheduled transportation of election officials and ballot papers to these two wards.
   
3. Section 65 (1) and (2) of the Act are in these terms:
   

(1) Notwithstanding anything to the contrary contained in this Act, where the commission is satisfied that by reason of flood or storm or any other cause whatsoever, whether of like nature or otherwise, it has not been or will not be possible to carry out any part of an election or to comply with any of the provisions of this Act relating to time, throughout the electoral constituency or any ward thereof, it may within fourteen days of the date originally appointed for that part of the election by notice, appoint or direct the Returning Officer to appoint a new date for such part and for any subsequent part of the election as may be necessary.

(2) Any date appointed under subsection (1) (shall be deemed to have been appointed under the appropriate provisions of this Act, and shall afford all persons not less notice than is provided for under those provisions." (Italics are made by the court for emphasis)

4. The Petitioner and the First Respondent are in dispute about the correct meanings of phrases in italics in section 65 (1) of the Act. So first, what does the phrase that by reason of "flood or storm or any other cause whatsoever, whether of like nature or otherwise" mean?
   

The Petitioner contends that the phrase merely mean natural causes only which are not of man making. On the contrary, the Respondent urged the court to apply the literal approach Rule as re-iterated in Muller v. Attorney General [1983] SILR 259 to find the correct meaning of that phrase. He submits that the phrase cannot have the restrictive meaning which the Petitioner contends because of the words 'any other cause whatsoever' in that phrase.

The Respondent further contends that the phrase is not ambiguous. Read in the context the correct interpretation is clear, that the reason for the deferral of an election can arise from natural causes covered by words 'by reason of flood or storm or of similar of like nature; and man-made causes as covered by the words 'any other cause whatsoever'.

This court also notes that the phrase 'any other cause whatsoever' begins with the ward "any". This is a word with wide meaning. In Clark-Jervoise v. Scutt [1920] Ich 382 at 387, 388 Eve J. said: '"Any" is a word of very wide meaning; any prima facie use of it excludes limitation'. Then in Victoria Chamber of Manufactures -v- Commonwealth [1943] HCA 19; [1943] 67 CLR 335 at 346, William J said ' "Any" is a word which ordinarily excludes limitation or qualification and which should be given as wide a construction as possible. "Any good" therefore includes all goods except where this wide construction is limited by the subject and context of a particular statute'.

There is evidence from the Petitioner's sworn statement that the commission charted the MV Baruku for purposes of the election at Sikaiana and Lord Howe on 4 August 2010. The trip was aborted before the vessel reached South Malaita Island. It arrived back in Honiara on 28 July 2010. I infer from this evidence and the commission's notice in Gazette No. 87 of 2010, that the commission had difficulty in chartering another vessel to travel to Sikaiana and Lord Howe on time for the election. The problem of transport difficulty also faced the First Respondent during an election in the past. See Kengalu v Holosi – Civil Case No. 208 of 1997.

After considering the submissions of counsels on this point, I hold the view that the phrase 'by reason of flood or storm or any other cause whatsoever, whether like nature or otherwise', in the context of section 65 (1) of the Act, does not merely mean natural causes only but also include man-made causes which would be included in the words 'any other cause whatsoever' in the phrase.

5. Next, what does the phrase 'within fourteen days of the date originally appointed' mean?
   

The First Respondent made decision to defer election for wards 31 and 32 on 9 December 2010 on 4 December 2010 and published notice of the deferment in Gazette No. 87 on 5 December 2010.

The Petitioner's position is that as the Governor-General appointed 4 August 2010 as the designated date to hold general election in the whole of Solomon Islands, including wards 31 and 32 of the Malaita Outer Islands Constituency, he therefore submits that the fourteen days period referred to under section 65 (1) of the Act, counts from 22 July 2010 to 4 August 2010. On the contrary, the Respondent submits that the counting of the fourteen days period begins from 5 December 2010. That was the day when the notice of the deferment was published in the Gazette. That notice is solely for public notice

The Petitioner relies on the case of Fa'asifoabae –v- Attorney-General [1985-6] SILR 74 to support his position. It would appear to this court that the Petitioner relies on a passage in the judgment of that case which states:

"In terms of s.74 of the Constitution and s.24 of the Act the Governor-General appointed 24 October 1984 as the date for holding the election. This date was deferred by the Electoral Commission to 14 November, under s.65 (1) of the Act quoted above. The power contained in s.65 (1) is limited to fourteen days with reference to the date appointed by the Governor-General and I would agree with Mr. Brown that the commission has no power now to invoke the provisions of the section."

This passage dealt with arguments by the defendant in that case where he said that the declaration under section 55 (1) of the Act was made in error because there was no election, three polling station never have been opened, and the commission, by their power under section 64 (1), still could hold an election for the three remaining stations. It must be remembered that the defendant made his argument to hold election in the three remaining stations six months after the deferred election was held in East Kwaio Constituency on 14 November 1984. That passage was not the decision of the court in that case.

The relevant decision of the court in Fa'asifoabae –v- Attorney General [1985-6] SLR 74 is:

"1. The power of the Electoral Commission under section 65 (1) of the Act to defer part of an election must be exercised within fourteen days of the date originally appointed for the election. Accordingly, it was no longer open to the commission to hold an election for the three unopened polling stations".

This court agrees with the submission of the Respondent in view of the decision in Fa'asifoabae –v- Attorney-General referred above.

Whether notice were given in accordance with section 65 (2) of the Act.

6. The Petitioner contends that the relevant provisions are sections 25 and 33 of the Act. Both require the Returning Officer to give election notice on or before the seventh day next before the day of election. The Petitioner further submits this meant that Deferment notice must be published in wards 31 and 32 within that periods specified in this sections.
   

The notice under section 25 of the Act is required to be published within seven days of the publication of the date appointed by the Governor-General for holding the general election. This notice is given by the Returning Officer as a process in the election. If the Returning Officer were to comply with this section where voting is being deferred by the Electoral Commission, the period of such notice would far exceed the fourteen days period stipulated in section 65 (1) of the Act. It would seem that the Petitioners submission in relation to this section 25 was misconceived.

The notice under section 33 is again by the Returning Officer, that notice may be publish in any manner as the Returning Officer may think fit. This is again is a process in the election. The notice may be given verbally or in writing or in any other way as the Returning Officer may see fit. But non-compliance with this section could be considered later under section 9 of the Act after the hearing of the petition.

The ruling of the court:

1. The reason for determent of an election under section 65 (1) may arise from both natural and man-made causes.
   
2. The fourteen day period stipulated in section 65 (1) takes effect from the first day after the Election Day originally appointed by the Governor-General. In this case from 5 of August 2010.
   
3. The First Respondent had lawfully exercised its power under s.65 (1) to defer voting to 9 August 2010 in wards 31 and 32 of the Malaita Outer Isalnds Constituency and gave notice thereof on 5 August 2010 in Extra Ordinary Gazette No. 87 of 2010.
   
4. Parties to bear their own costs.
   

THE COURT